The spirit of the laws

Fred Hutchison, RenewAmerica analyst

Originally published February 14, 2004

Baron Montesquieu (Mahn-tes'-kyoo) De Secondat (French political philosopher, 1689–1755) wrote The Spirit of the Laws (l'Espirit des Lois, 1750), which is esteemed by some as the most important work of political philosophy of the 18th century. He wrote that a Republic ought to have three branches, the legislative, executive, and judicial — with the separation of the three powers. He believed that this is the form of government which best ensures liberty. James Madison (1751–1856) was inspired by these ideas as he wrote the first draft of the Constitution.

Montesquieu said that each kind of government has an animating principle which is expressed in the laws. A Republic has the animating principle of virtue; an Aristocracy has the animating principle of honor; and a Despotism has the animating principle of fear.

Republican virtue and virtuous laws

If virtue is the animating principle of a Republic, then a virtuous citizenry makes for a healthy, orderly, and vigorous Republic. Virtuous citizens obey the laws without being closely monitored by the police. Good citizenship involves a sense of duty to serve the community and the state. Volunteer civic improvement groups, charitable groups, and churches will gracefully perform many tasks for the community which are performed awkwardly when delegated to the heavy hands of civil government. Virtue guides the citizen in seeking good for their community and opposing evil in their community. Virtuous families care for their own and do not let their members become wards of the state. A virtuous citizenry will promote "virtuous" laws.

What makes a law "virtuous"? The law must be in accord with the laws of God and the laws of nature. A virtuous law should be a particular expression of a higher law or be in harmony with the higher law. Laws which contradict the "higher law" are wicked laws. Virtuous laws are just and are good for the community as a whole. A virtuous law does not reward or protect vice. A virtuous law speaks to the "better angels of our nature" and reinforces the consciences of virtuous men. In contrast, a vicious law troubles the conscience of a virtuous man and places him in the troubling dilemma of obeying the law or obeying his conscience.

A virtuous law is "legal" — that is to say, enacted by a legitimate due process of legislation. It is constitutional and does not go beyond the jurisdiction of the law-making body's authority. When a judge or magistrate asserts arbitrary power and decrees a law by fiat — it is a tyranny and a legal usurpation that is alien to the nature of a free Republic. Virtuous citizens are grieved by the assertions, intrusions, and usurpations of arbitrary laws decreed by despotic powers.

There are three kinds of arbitrary law — law by decree, law unhinged from reason, and laws serving arbitrary ends. A legislature may follow due process of law, but if they write laws grounded only in subjective feelings, the laws they draft are arbitrary. Laws must have their basis in objective logical propositions which can survive the challenges of legislative debate. Laws which do not have virtuous ends are also arbitrary. A law which is passed because of the pressures of private interests and which serves those interests at the expense of the commonweal is arbitrary and vicious. Virtuous citizens oppose arbitrary and vicious laws. A decline in the virtue of the citizenry places a Republic in grave danger of vicious laws and a collapse into a despotism.

The conscience of the virtuous citizen

Alan Keyes once said on television that the primary reason why most men do not commit murder is because there is a prohibition against it in their consciences. Laws against murder reinforce human conscience. Capital punishment vindicates the law against murder. Through this powerful and fearful punishment, the legal prohibition against murder is decisively justified and seared into the human conscience. The vileness and bitter injustice of murder is never more apparent than when the condemned murderer stands upon the gallows with the family of the deceased victim of the crime watching. The citizens stand in fear and awe before the stern justice of their government. After recovering from the horror of a public execution and the shaken sentiments it arouses, human conscience is vivified and understands that this is just and right. The state grows in honor and respect and the wicked tremble. This is, of course, the exact opposite of the mythology of Hollywood which cares only about the drama of tender sentiments which are traumatically startled by an execution. The myth is blind to the suffering of crime victims and to the majesty of justice.

Capital punishment helps to reinforce the virtue of the citizenry and to build a society on the foundation of the sacredness of human life. A society that rationalizes abortion (i.e., the slaughter of the innocents) is destined to rationalize other forms of murder and will oppose capital punishment. Those who reject the idea that there exists a universal moral law will hate capital punishment — precisely because it vindicates the universal moral law. It also convicts the conscience of the lawless — which enrages and embitters them. Yes, the law is a torment to the wicked. They become enemies of capital punishment because it vicariously chastens them. The lawless prefer to sympathize with the suffering of the murderer — precisely because he is suffering the just consequences of his own actions. A lawless society is at war with the idea that actions have consequences and that sins will be judged.

Contrary to a myth of Modernism, laws do not create human conscience. Laws reinforce conscience — especially when crime is followed by punishment. The universal moral law is written in all men's hearts. It is innate to human nature because we are created according to a design. According to Kant's terminology, the moral law is "a priori," meaning that the law written upon the heart precedes and guides the operation of conscience.

A virtuous citizen wants to listen to the voice of conscience and is grateful for those wholesome laws of his state which reinforce and clarify the inner voice of conscience. A lawless person wants to extinguish the voice of conscience in order to indulge his destructive passions and lust for vice and yet be free from the pangs of guilt. He bridles against laws which awaken his conscience.

The inner battle

The laws that are enforced by the state influence the behavior of those who are wavering between virtue and vice. Their conscience and their passions and lusts are in a state of civil war. They can sometimes be drawn back from the cusp of temptation by wholesome laws.

"Between the acting of a dreadful thing and the first motion, all the interim is like a phantasma or a hideous dream: the genius and the instruments are then in council; and the state of man, like to a little kingdom, suffers then the nature of an insurrection." (Julius Caesar, Shakespeare).

These words of Brutus are the reflections of a man who had a reputation for virtue but was considering joining a conspiracy to murder Caesar — ostensibly for the good of the state. He was swayed by false logic, of course. The murder stirred up the citizens of Rome to civil war and to vicious behavior. Brutus should have listened to his uneasy conscience. His inner being was "like to a little kingdom" which "suffers then the nature of an insurrection." If he had witnessed the execution of a murderer, it might have been enough of a shock to his conscience to draw him back from temptation.

Transcendent vision and the moral law

"Two things fill the mind with ever new and increasing wonder and awe, the more often and the more seriously reflection concentrates upon them, the starry heaven above me and the moral law within me." — Immanuel Kant (German philosopher, 1724–1804)

Is there a connection between staring up into the heavens and gazing inwardly into the conscience? Are men who look in wonder at the stars the same kind of men who plumb the depths of their consciences? Is it harder to listen to the voice of conscience if heavenly things or high ideals have no enchantment for one? I think the answer to these questions is yes.

Christian theology speaks of the transcendence and the immanence of God. Transcendence refers to all the ways that the Creator is infinitely different from the creation. The aspiration of transcendence is a vertical gaze, which involves a sense of wonder at the glories and mysteries of God and a longing to behold his transcendent holiness, glory, and beauty. The immanence (not the imminence) of God is the immediate presence of God. The Holy Spirit of God indwells the believer. Therefore, the aspiration of immanence involves an inward turning. The Quakers used to call this the "inner light." There is a third spiritual aspiration that might be called "pneuma," a Greek word which means "wind" or "spirit." The Spirit of God blows over the earth like a wind and men see its works. The aspiration of pneuma is a horizontal and an extroverted look at spiritual events.

Interestingly, God is a Trinity of three persons — and man, who is created in God's image, has three spiritual aspirations — the vertical, the horizontal, and the inward. God is the source of the universal moral law. Therefore we look upward to God and to the higher law which is above the laws of men. The universal moral law is written upon the conscience so we look inwardly to find it. We look outwardly upon the horizontal stage of human affairs to see if the moral law is honored or violated by men and if it is vindicated or undercut by the laws of the state.

A citizenry that marvels at the transcendent realm will also embrace the universal moral law. Even semi-transcendent aspirations such as the love of truth, the love of country, and Romantic ideals about the sublime and the beautiful can inspire a measure of virtue and lawfulness. Patriotism, truth, and the ideals of beauty naturally go together with law and order. Lawlessness in the heart tends to team up with contempt for patriotism, truth, and beauty in the arts. These patterns run consistently on parallel tracks throughout the course of history.

The decline of the transcendent

Western Civilization has gradually turned away from the aspiration of transcendence during recent centuries. The honoring of the universal moral law has declined along a parallel track.

In the late 1600's, we see the turning away from the transcendent in the arts. The plays by Racine — domestic French farces — were void of any moral point or any higher calling other than pure worldly entertainment for its own sake — like much of our TV. The playful, self-delighting style of Rococo ornament on the interiors of the theaters provided a perfect setting for the plays of Racine.

Around 1750, some of the greatest philosophers of Europe tried to find a metaphysical explanation for the tragic Lisbon earthquake. Their efforts ended in dismal failure and their confidence in rationalism was shaken. Led by skeptical writers such as Voltaire and Diderot, the philosophers of the French Enlightenment turned away from metaphysics (the study of first principles and the principles of ultimate reality) and turned their eyes upon the more practical realms of science, engineering, economics, political science, and social commentary.

Kant was extremely critical of metaphysics (especially in questions of being and knowing) in spite of his poetic-metaphysical comment about the starry skies above and the moral law within. As a nominal Lutheran pietist with spiritual vision, he was the natural defender of metaphysics — but he was poisoned by the skepticism of Hume and deceived by the fancies of Rousseau. Being a genius of the highest order, Kant's powerful refutation of metaphysics banished it from academia and sent it into the wilderness for two centuries. Metaphysics is only now reviving, thanks in part to the efforts of the Philosophy Department of Talbot Seminary and to Calvin College.

After the fateful rejection of metaphysics, thinking men focused their minds on this world, instead of on a higher realm of truth. As the vertical dimension faded, the love of virtue also faded. It was partially restored by religious revivals in the nineteenth century. But in the worldly twentieth century, the transcendent aspiration slowly drained away from Christianity.

Today, even among doctrinal conservatives and highly committed Evangelicals, the sense of wonder about the grandeur, glory, holiness, and beauty of God is often strangely missing from their services. As we were warned by A. W. Tozer (1897-1963), our great but little-heeded American Evangelical prophet, "the glory has departed from the temple." As the glory was departing, the zeal of Evangelicals to fight for morality in the culture faded. The Evangelicals went AWOL from the culture war for several generations.

Religious conservatives have been awakened from their slumbers by the manifest wickedness of our culture — which is now too startling to be ignored. Here and there, Christians are rediscovering the mysterious transcendence of God — and new zeal is becoming evident at the battle front.

There is a lot to do in a little time. We must take back the country and restore constitutional order and virtuous laws. We must re-educate our ignorant citizens in the ways of virtuous citizenship. Then we will have the kind of patient, self-sacrificing, and dutiful citizens who will unite in the long war against global terrorism.

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© Fred Hutchison